[Congressional Record Volume 158, Number 41 (Tuesday, March 13, 2012)]
[Senate]
[Pages S1586-S1589]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
JUDICIAL NOMINATIONS
Mr. LEAHY. Mr. President, I listened with interest to the colloquy
between my two friends, the distinguished majority and minority
leaders. It is almost--and I think the American people see it as
almost--a kabuki dance because the fact is, the majority leader is
right to seek votes on these district court nominees. He seeks to
secure Senate votes for 17 highly qualified Federal district court
nominations favorably reported by the Judiciary Committee. They are
being blocked by Senate Republicans.
I wish we could find a way to stop these damaging filibusters. They
are totally unprecedented. It is greatly damaging the most respected
court system in the world: our Federal court system. That means
Americans are not getting the justice without delay they are entitled
to. We must work together to ensure that the Federal courts have the
judges they need to provide justice for all Americans without needless
delay.
[[Page S1587]]
Federal district court judges are the trial court judges who hear
cases from litigants across the country and preside over Federal
criminal trials, applying the law to facts and helping settle legal
disputes. They handle the vast majority of the caseload of the Federal
courts and are critical to making sure our Federal courts remain
available to provide a fair hearing for all Americans. Nominations to
fill these critical positions, whether made by a Democratic or
Republican President, have always been considered with deference to the
home state Senators who know the nominees and their states best, and
have always been confirmed quickly with that support.
I have been here 37 years, with Republican Presidents, Democratic
Presidents, Republican majorities, Democratic majorities. Never in
those 37 years have we seen district court nominees blocked for months
as we have seen since President Obama was elected.
These kinds of consensus nominees are normally taken up within a few
days or a week after being nominated and voted out of our Judiciary
Committee, whether nominated by a Democratic or a Republican President.
It was certainly the approach taken by Senate Democrats when President
Bush sent us consensus nominees. As a result, we were able to reduce
vacancies in the Presidential election years of 2004 and 2008 to the
lowest levels in decades. That was also how we confirmed 205 of
President Bush's judicial nominees in his first term.
For those who want to understand where the partisanship is, here is a
little bit of history. For 31 months of the first 48 months of
President Bush's first term, Republicans controlled the Senate, and for
17 months, Democrats controlled the Senate. To show that we wanted to
set aside partisanship, in our 17 months that we were in control,
Senate Democrats helped confirm 100 of President Bush's nominees. In
the 31 months Republicans were in charge, they did 105, which was
slightly more nominees. But the fact is, we actually moved a lot faster
on President Bush's nominees than the Republicans did.
I was chairman of the committee, and I tried to do that to get us
away from what we had seen where Republicans had pocket-filibustered 60
of President Clinton's nominees. I wanted to get back to where we took
politics out of the Federal courts.
But we have seen now a complete reversal of this. Senate Republicans
have ensured that nominees who in the past would have been confirmed
promptly by the Senate are now blocked for months. An unprecedented
number of President Obama's highly qualified men and women to district
courts has been targeted for opposition and obstruction while extreme
outside groups tar their records and reputations with invented
controversies. It is unprecedented and it hurts our system of justice
in this country.
Two weeks ago, at a meeting of the Senate Judiciary Committee, the
Senator from Utah conceded that a ``new standard'' is being applied to
President Obama's nominations. He was saying out loud what has been
apparent from the start of President Obama's term--that Republican
Senators have applied a different and unfair standard to President
Obama's judicial nominees.
I was here with President Ford, President Carter, President Reagan,
President George H.W. Bush, President Clinton, President George W.
Bush, and now President Obama. I can attest that Republicans have set a
different standard for President Obama than has been applied to any of
the other Presidents I have known since I have been here. I have to ask
myself, what is so different about this President that he is treated to
a different, tougher standard than any of the Presidents before him? I
just ask. President Obama's district court nominees have been forced to
wait more than four times as long to be confirmed by the Senate as
President Bush's district court nominees at this point in his first
term, taking an average of 93 days after being voted on by the Senate
Judiciary Committee.
When I hear Republican Senators claim there is no obstruction and
there is no reason for the majority leader to push for votes on these
nominations, I wonder if they have looked at our recent history.
I spoke of President Bush's first term. Mr. President, 57 of his
district court nominations were confirmed within 1 week of being
favorably reported by the Judiciary Committee--1 week. In stark
contrast to those 57, only 2 of President Obama's district court
nominations have been confirmed within 1 week of being reported--less
than one twenty fifth the number of President Bush's. More than half of
the nominations for which the leader has now filed cloture have been
pending since last year--many months, not days. This must be the new
standard the Senator from Utah has said Senate Republicans are using
for President Obama's nominations--a different standard than all the
Presidents before him. I will at least praise the Senator from Utah for
his honesty.
Indeed, 10 of the nominations on which the Majority Leader has been
required to file cloture in order to end the Republican filibuster and
get a vote have been awaiting a vote since last year. Nine of them had
the support of every Republican as well as every Democratic Senator
serving on the Judiciary Committee. They all should have been
considered and confirmed last year.
I understand and share the Majority Leader's frustration. He has been
unable to obtain the usual cooperation from the minority to schedule
debates and votes on these widely supported, consensus nominees. I
regret that the Majority Leader has been forced to take this action but
the millions of Americans seeking justice in their courts should not be
forced to wait any longer.
To understand how unusual and wrongheaded this is, consider the
following: Republicans are opposing judicial nominees they support.
They are stalling Senate action for weeks and months on judicial
nominees who they do not oppose and who they vote to confirm once their
filibuster can be ended and the vote scheduled. That is what happened
after a four-month filibuster when the Senate finally voted on the
nomination of Judge Barbara Keenan. That is what happened when after a
five-month filibuster, the Senate finally voted on the nomination of
Judge Denny Chin. Once the Republican filibusters were ended, they were
confirmed unanimously. That is what happened after an eleven-month
delay before confirmation of Judge Albert Diaz of North Carolina. That
is what happened after seven-month delays before confirmations of Judge
Kimberly Mueller of California, Judge Catherine Eagles of North
Carolina, Judge John Gibney, Jr. of Virginia, and Judge Ray Lohier of
New York. That is what happened after six-month delays before the
confirmations of Judge James Bredar and Judge Ellen Hollander of
Maryland; Judge Susan Nelson of Minnesota, Judge Scott Matheson of Utah
and Judge James Wynn, Jr. of North Carolina. That is what happened
after five-month delays before confirmations of Judge Nannette Brown of
Louisiana, Judge Nancy Torresen of Maine, Judge William Kuntz of New
York, and Judge Henry Floyd of South Carolina. This is what happened
after four-month delays before the confirmations of Judge Edmond Chang
of Illinois, Judge Leslie Kobayashi of Hawaii, Judge Denise Casper of
Massachusetts, Judge Carlton Reeves of Mississippi, Judge John Ross of
Missouri, Judge Timothy Cain of South Carolina, Judge Marina Marmolejo
of Texas, Judge Beverly Martin of Georgia, Judge Joseph Greenaway of
New Jersey, Judge Mary Murguia of Arizona, and Judge Chris Droney of
Connecticut.
So, too, I expect the district court nominee to fill a judicial
emergency vacancy in Utah, supported by Senator Hatch, will not be
controversial once the vote takes place. The district court nominees to
fill judicial emergency vacancies in Texas, supported by Senator
Hutchison and Senator Cornyn, should easily be confirmed. The nominees
to judicial emergency vacancies in Illinois supported by Senator Kirk,
should not be controversial. The district court nominee in Louisiana
supported by Senator Vitter, should not be controversial. The district
court nominee in Missouri supported by Senator Blunt, should not be
controversial. The district court nominee in Arkansas supported by
Senator Boozman, should not be controversial. The district court
nominee in Massachusetts supported by Senator Brown, should not be
controversial. The district court nominee
[[Page S1588]]
in South Carolina supported by Senator Graham, should not be
controversial. The district court nominee in Ohio supported by Senator
Portman, should not be controversial.
Senate Democrats never applied this standard to President Bush's
district court nominees, whether we were in the majority or the
minority. During his eight years in office, President Bush saw only
five of his district court nominees have any opposition on the floor
and that opposition had to do with doubts about those nominees'
suitability to be Federal judges. After only three years, 19 of
President Obama's district court nominees have already received
opposition. Even though President Obama has worked with Republican and
Democratic home state Senators to identify highly-qualified, consensus
nominees, his district court nominees have already received more than
five times as many ``no'' votes in three years as President Bush's
district court nominees did in his eight years over his two terms. This
is further proof of the Republicans' new standard.
I find that reprehensible. It means President Obama's nominees are
being treated differently than any Presidents, Democratic or
Republican, before him. It is no accident that 1 out of every 10
Federal judgeships remains vacant in the fourth year of President
Obama's first term. It is not happenstance that judicial vacancies are
nearly double what they were at this point in President Bush's first
term. The extended crisis in judicial vacancies is the result of
deliberate obstruction and delays by Senate Republicans.
A few years after Republican Senators insisted that filibusters of
President Bush's judicial nominees were unconstitutional, they reversed
course and filibustered President Obama's very first judicial
nomination, that of Judge David Hamilton of Indiana, a widely-respected
15-year veteran of the Federal bench who had the support of the most
senior and longest-serving Republican in the Senate, Senator Lugar. The
Senate rejected that filibuster and Judge Hamilton was confirmed, but
the pattern of partisan obstruction of President Obama's judicial
nominees was set from the very start.
That is wrong--that is wrong--and that is turning your back on a
majority of Americans who voted for President Obama in the last
election, Americans from all across the country, of all backgrounds, of
all races, of all religions--to turn your back on them by saying: You
may have elected him, but we are going to hold him to a different
standard. It is wrong.
At the end of each of the last two years, the Senate Republican
leadership continued this obstruction by ignoring long-established
precedent and refusing to agree to schedule votes on dozens of
consensus judicial nominees before the December recess. Last year it
took us until June to confirm nominees who should have been confirmed
in 2010. This year we have had to end two more of the nine Republican
filibusters of President Obama's judicial nominations to confirm
nominees who should have been confirmed the year before and fully a
dozen judicial nominees from last year remain to be considered. And
here we are in the middle of March, having to fight to hold votes on 10
district court nominees who should have been confirmed last year.
This obstruction is purposeful and it is damaging. The people who
bear the brunt of this Republican obstruction are the American people.
The result of the Senate Republicans' obstruction is that the ability
of our Federal courts to provide justice to Americans around the
country is compromised. Millions of Americans, who are in overburdened
districts and circuits, experience unnecessary delays in having their
cases resolved. Nearly one hundred and sixty million Americans live in
districts or circuits that have a judicial vacancy that could be filled
today if Senate Republicans would just agree to vote on the nominations
now pending on the Senate calendar. It is wrong to delay votes on
qualified, consensus judicial nominees.
Our courts need qualified Federal judges, not vacancies, if they are
to reduce the excessive wait times that burden litigants seeking their
day in court. It is unacceptable for hardworking Americans who turn to
their courts for justice to suffer unnecessary delays. When an injured
plaintiff sues to help cover the cost of his or her medical expenses,
that plaintiff should not have to wait three years before a judge hears
the case. When two small business owners disagree over a contract, they
should not have to wait years for a court to resolve their dispute.
When Senate Democrats opposed some of President Bush's most
ideological nominees, we did so openly, saying why we opposed them. At
the same time, we continued to move consensus nominees quickly so they
could begin serving the American people. That is what I did as Chairman
for 17 months during the first two years of the Bush administration and
how we were able to lower judicial vacancies by confirming 100 of his
circuit and district court nominees. That is how we reduced vacancies
in the presidential election years of 2004 and 2008 to the lowest
levels in decades, half of what they are now. That is how we had
already confirmed 172 of President Bush's circuit and district nominees
by this point in his first term, as compared to only 131 of President
Obama's and being 40 confirmations and nine months behind the pace we
set then. We did so because we put the needs of the American people
before partisanship and obstruction.
We had another discussion of these matters in the Senate Judiciary
Committee two weeks ago. Senator Coburn said that this is ``exactly
what makes Americans sick of what we are doing.'' I agree. I have been
saying for some time that this needless obstruction is what has driven
approval ratings of Congress down to single digits. The Senator from
Oklahoma observed that it would behoove us all to get back to the days
when these lower court judicial nominations were not areas of partisan
conflict. I agree. I have tried to do my part in that regard by
treating Republican Senators fairly and protecting their rights.
President Obama has done his part by consulting with Republican home
state Senators and selecting moderate, well-qualified nominees. It is
time for Senate Republicans to do their part and not abuse their rights
under our Senate rules and procedures. It is time for them to end the
partisan stalling. It is time for Senate Republicans to agree to
schedule votes on these long-delayed and much-needed judges.
Once we have overcome these unprecedented filibusters of President
Obama's district court nominations, I hope that it will not take more
delays and more cloture petitions to end the filibusters against the
five outstanding nominees by President Obama to fill vacancies on our
Federal circuit courts. Two delayed from last year are outstanding
women: Stephanie Dawn Thacker of West Virginia, nominated to the Fourth
Circuit, and Judge Jacqueline Nguyen of California, nominated to fill
one of the many judicial emergency vacancies on the Ninth Circuit. Ms.
Thacker, an experienced litigator and prosecutor, has the strong
support of her home state Senators, Senators Rockefeller and Manchin.
Judge Nguyen, whose family fled to the United States in 1975 after the
fall of South Vietnam, was confirmed unanimously to the district court
in 2009 and would become the first Asian Pacific American woman to
serve on a U.S. Court of Appeals. Last week, The Sacramento Bee ran an
editorial about Judge Nguyen's nomination that noted that ``for those
of us in the real world particularly those seeking justice in the
federal courts--it would be far, far better if these qualified jurists
could get to work.'' I will ask unanimous consent that the article be
printed in the Record. Both Ms. Thacker and Judge Nguyen were reported
unanimously by the Judiciary Committee last year and both should be
considered and confirmed by the Senate without additional damaging
delays.
I hope Republicans and Democrats can join together to put an end to
this damaging pattern of obstruction and filibusters. It hurts our
Federal courts. It is a disrespect to the President of the United
States. It goes way beyond partisanship. But it is wrong, and it
demeans this great body we are all privileged to serve in. This is the
sort of thing I never thought I would see in the Senate of the United
States. I say that based on 37 years of experience with Senators I have
admired and have publicly stated I have admired in both
[[Page S1589]]
parties. This is wrong. Let's go back and let the Senate be the
conscience of the Nation, not a body that reflects some of the worst
instincts of our Nation.
I ask unanimous consent that the article to which I refereed be
printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
[From the Sacramento Bee, Mar. 6, 2012]
Justice Delayed as Judge Nominees Wait
Republicans in the U.S. Senate are once again using
President Barack Obama's judicial nominations as pawns in
their political chess match.
There's even loose talk of putting off votes as long as
possible, in hopes that Obama loses in November and the seats
can be filled by a Republican president.
That's absurd.
There are too many vacancies on federal courts in
California and other states, where there aren't enough judges
to handle the caseloads. Too often, justice delayed really is
justice denied.
Democratic leader Harry Reid of Nevada is apparently so fed
up that he's willing to go to war to get confirmation votes
on the Senate floor, Politico reports.
Good for him. The Republicans deserve to be called out on
their obstructionism--and their hypocrisy, since they often
complain about how slow the federal courts are.
The focus is on 14 qualified nominees who won bipartisan
support in the Senate Judiciary Committee, including two from
California who were unanimously approved but have been on
hold for months.
One is Jacqueline Nguyen of Los Angeles, who was nominated
by Obama last September for the 9th U.S. Circuit Court of
Appeals and endorsed by the judiciary panel on Dec. 1. The
first Vietnamese-American woman to serve as a federal judge,
she was 10 when her family fled Vietnam at the end of the
war. They started as refugees in Camp Pendleton and made
their own version of the American Dream.
The second is Michael Fitzgerald, who was nominated last
July for a judgeship in the Central District of California
and received committee approval on Nov. 3. A Los Angeles
attorney and former federal prosecutor, he would become the
first openly gay federal judge in the state and the fourth
nationwide.
Both those courts are in an official ``judicial emergency''
because cases are so backed up.
There are two more recent nominations for 9th Circuit seats
that have gone through the Judiciary Committee. Paul Watford,
a Los Angeles attorney and former prosecutor, was approved on
a 10 6 vote on Feb. 2. Andrew Hurwitz, an Arizona Supreme
Court justice, was approved on a 13 5 vote Thursday.
The San Francisco-based 9th Circuit is a particular target
for Republicans, who like to rail against what they call its
liberal, activist bent. Their delaying tactics succeeded in
forcing Goodwin Liu, a highly regarded UC Berkeley law
professor who grew up in Sacramento, to withdraw his
nomination last July. (Gov. Jerry Brown then nominated him to
the California Supreme Court, where Liu now serves.)
It must be said that there are also political advantages
for Obama if the delays continue. It would give him more
ammunition to campaign against a ``do-nothing Congress.''
Given the ways of Washington, that may be the most likely
scenario.
But for those of us in the real world--particularly those
seeking justice in the federal courts--it would be far, far
better if these qualified jurists could get to work.
Mr. LEAHY. I suggest the absence of a quorum.
The ACTING PRESIDENT pro tempore. Will the Senator suspend?
Mr. LEAHY. Yes.
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